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PETITIONER:

P. NALLAMMAL

Vs.

RESPONDENT:

STATE REP. BY INSPECTOR OF POLICE

DATE OF JUDGMENT: 09/08/1999

BENCH:

K.T. Thomas, M.B. Shah.

JUDGMENT:

THOMAS, J.

Leave granted.

Some of the former Ministers of the Tamil Nadu

Government in the Ministry headed by the erstwhile Chief

Minister Smt. Jayalalitha are being prosecuted before

certain Special Courts for the offence, inter alia, under

Section 13(1)(e) of the Prevention of Corruption Act, 1988

(for short "the P.C. Act"). The former speaker of the

Tamil Nadu Legislative Assembly (when Smt. Jayalalitha was

the Chief Minister) is also facing a similar charge. They

are indicted on the premise that they were public servants

during the relevant time and that each one has amassed

wealth disproportionate to his/her known sources of income,

for which he/she is unable to account.

But in all such cases, some of their kith and kin are

also being arraigned as co-accused to face the said offence

read with Section 109 of the Indian Penal Code (for short

"the Penal Code"). Appellants herein are all those kith and

kin who are now being proceeded against for the said

offences in conjunction with the public servant concerned.

They raised preliminary objections before the Special Courts

on various grounds for pre-charge exoneration, but the Court

repelled all such objections. They moved the High Court of

Madras against such orders, but a learned Single Judge who

heard the motions together, along with certain other

petitions arising from the same prosecution proceedings,

dismissed all the petitions by a common order, which is now

being challenged in these appeals.

Appellants have restricted their contentions, in these

appeals, to the question whether they are liable to be

prosecuted along with public servants for the offence under

Section 109 of the Penal Code read with Section 13(1)(e) of

the P.C. Act. Shri K.K. Venugopal, learned senior counsel

arguing for the appellants submitted his point broadly that

the offence under Section 13(1)(e) of the P.C. Act is

unabettable, since the nub of the offence is the failure of

the public servant to account for the excess wealth which

none else can possibly do.

Respondent - State of Tamil Nadu has produced a copy of

the decision rendered by a learned Single Judge of the

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Madras High Court dated 17-6-1988, in which the identical

question was considered when it arose under Section 5(1) of

the Prevention of Corruption Act, 1947 (for short "the old

P.C. Act") wherein it was held that "the offence of

acquiring and being in possession of disproportionate assets

can be abetted by another including one who is not a public

servant". It was pointed out by the respondent that the

aforesaid decision was challenged before this Court through

a special leave petition and on 14-12-1988 this Court has

dismissed the said petition. Shri K.K. Venugopal has

rightly contended that dismissal of the special leave

petition will not amount to upholding of the law propounded

in the decision challenged through that special leave

petition. The aforesaid legal position seems to be well

nigh settled. [vide Indian Oil Corporation Ltd. vs. State

of Bihar {1986 (4) SCC 146}]; Union of India vs. All India

Services Pensioners Association {1988 (2) SCC 580}; Supreme

Court Employees Welfare Association vs. Union of India

{1989 (4) SCC 187].

Shri Shanti Bhushan, learned counsel appearing for the

respondent - State submitted that it would be a dangerous

proposition that the offence under Section 13(1)(e) of the

P.C. Act is unabettable because a non public servant who

actively aids and facilitates the perpetration of the said

offence would move at large with immunity. Learned counsel

pointed out a few illustrations to drive the point home that

such offence is clearly abettable by others and the abettors

cannot be insulated from the reach of law.

Union of India was made a respondent before the Madras

High Court and one Under Secretary to the Government of

India had filed a counter affidavit therein on 1-12-1998

conceding to the legal position espoused by the appellants.

But Shri V.R. Reddy, learned senior counsel now appearing

for the Union of India strongly supported the stand adopted

by the State of Tamil Nadu. The volte-face of the Union of

India cannot be frowned at, for, it is open to the State or

Union of India or even a private party to retrace or even

resile from a concession once made in the court on a legal

proposition. Firstly, because the party concerned, on a

reconsideration of the proposition could comprehend a

different construction as more appropriate. Secondly, the

construction of statutory provision cannot rest entirely on

the stand adopted by any party in the lis. Thirdly, the

parties must be left free to aid the court in reaching the

correct construction to be placed on a statutory provision.

They cannot be nailed to a position on the legal

interpretation which they adopted at a particular point of

time because saner thoughts can throw more light on the same

subject at later stage.

Before dealing with the contention advanced by the

appellants we may point out that Section 4 of the P.C. Act

confers exclusive jurisdiction to Special Judges appointed

under the P.C. Act to try the offences specified in Section

3(1) of the P.C. Act. To understand the exclusivity of

such jurisdiction it is advantageous to extract Section 4(1)

of the P.C. Act as under:

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"Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), or in any

other law for the time being in force, the

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offences specified in sub-section (1) of section 3

shall be tried by special Judges only."

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The placement of the monosyllable "only" in the sub-

section is such that the very object of the sub-section can

be discerned as to emphasize the exclusivity of the

jurisdiction of the Special Judges to try all offences

enveloped in Section 3(1). That can be further noticed

while reading that sub-section. It is as follows:

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"The Central Government or the State Government

may, by notification in the Official Gazette,

appoint as many special Judges as may be necessary

for such area or areas or for such case or group

of cases as may be specified in the notification

to try the following offences, namely:-

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to

commit or any abetment of any of the offences

specified in clause(a)."

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Thus, clause (b) of the sub-section encompasses the

offences committed in conspiracy with others or by abetment

of "any of the offences" punishable under the P.C. Act. If

such conspiracy or abetment of "any of the offences"

punishable under the P.C. Act can be tried "only" by the

Special Judge, it is inconceivable that the abettor or the

conspirator can be delinked from the delinquent public

servant for the purpose of trial of the offence. If a non-

public servant is also a member of the criminal conspiracy

for a public servant to commit any offence under the P.C.

Act, or if such non-public servant has abetted any of the

offences which the public servant commits, such non-public

servant is also liable to be tried along with the public

servant before the court of a Special Judge having

jurisdiction in the matter.

Shri K.K. Venugopal, learned senior counsel contended

that P.C. Act, being a special enactment has taken into its

fold specific cases of abetment of offences. Vide Sections

10 and 12 of the P.C. Act. Those sections are extracted

below:

"10. Punishment for abetment by public servant of

offences defined in section 8 or 9.- Whoever,

being a public servant, in respect of whom either

of the offences defined in section 8 or section 9

is committed, abets the offence, whether or not

that offence is committed in consequence of that

abetment, shall be punishable with imprisonment

for a term which shall be not less than six months

but which may extend to five years and shall also

be liable to fine."

"12. Punishment for abetment of offences defined

in section 7 or 11.- Whoever abets any offence

punishable under section 7 or section 11 whether

or not that offence is committed in consequence of

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that abetment, shall be punishable with

imprisonment for a term which shall be not less

than six months but which may extend to five years

and shall also be liable to fine."

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According to the learned counsel since no other type of

abetment is made specifically punishable under the P.C. Act

there cannot be any question of a non-public servant

abetting the offence under Section 13(1)(e) of the P.C.

Act.

It is true that Section 11 deals with a case of abetment

of offences defined under Section 8 and section 9, and it is

also true that Section 12 specifically deals with the case

of abetment of offences under Sections 7 and 11. But that

is no ground to hold that the P.C. Act does not contemplate

abetment of any of the offences specified in Section 13 of

the P.C. Act. Learned counsel focussed on Section 13(1)(e)

to elaborate that by the very nature of that offence it

pertains entirely to the public servant concerned as there

is no role for the co-accused for discharging the burden of

proof.

Section 13(1)(e) reads thus:

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"A public servant is said to commit the offence of

criminal misconduct,- (e) if he or any person on

his behalf, is in possession or has, at any time

during the period of his office, been in

possession for which the public servant cannot

satisfactorily account, of pecuniary resources or

property disproportionate to his known sources of

income. Explanation.- For the purposes of this

section, `known sources of income' means income

received from any lawful source and such receipt

has been intimated in accordance with the

provisions of any law, rules or orders for the

time being applicable to a public servant."

It may be remembered that this Court has held in M.

Krishna Reddy v. State Deputy Superintendent of Police,

Hyderabad {1992 (4) SCC 45} thus:

"An analysis of Section 5(1)(e) of the Act, 1947

which corresponds to Section 13(1)(e) of the new

Act of 1988 shows that it is not the mere

acquisition of property that constitutes an

offence under the provisions of the Act but it is

the failure to satisfactorily account for such

possession that makes the possession objectionable

as offending the law."

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Thus, the two postulates must combine together for

crystallization into the offence, namely, possession of

property or resources disproportionate to the known sources

of income of public servant and the inability of the public

servant to account for it. Burden of proof regarding the

first limb is on the prosecution whereas the onus is on the

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public servant to prove the second limb. So it is contended

that a non-public servant has no role in the trial of the

said offence and hence he cannot conceivably be tagged with

the public servant for the offence under Section 13(1)(e) of

the P.C. Act.

Section 13 of the P.C. Act is enacted as a substitute

for Sections 161 to 165-A of the Penal Code which were part

of Chapter IX of that Code under the title "All offences by

or relating to public servants". Those sections were

deleted from the Penal Code contemporaneous with the

enactment of Section 31 of the P.C. Act (vide Section 31 of

the P.C. Act). It is appropriate to point out here that in

the original old P.C. Act there was no provision analogous

to Section 13(1)e), but on the recommendation of Santhanam

Committee the said Act was amended in 1964 by incorporating

Section 5(1)(e) in the old P.C. Act. Parliament later

proceeded to "consolidate and amend the law relating to

prevention of corruption" and in the Bill introduced for

that purpose the following was declared as per the Statement

of Objects and Reasons thereof:

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"The prevention of Corruption Act, 1947, was

amended in 1964 based on the recommendations of

the Santhanam Committee. There are provisions in

Chapter IX of the Indian Penal Code to deal with

public servants and those who abet them by way of

the criminal misconduct, there are also provisions

in the Criminal Law Amendment Ordinance, 1944, to

enable attachment of ill-gotten wealth. The Bill

seeks to incorporate all these provision with

modifications so as to make the provisions more

effective in combating corruption among public

servants."

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Thus, one of the objects of the new Act was to

incorporate all the provisions to make them more effective.

Section 165-A of the Penal Code read like this:

"Punishment for abetment of offences defined in

section 161 or section 165.- Whoever abets any

offence punishable under section 161 or section

165, whether or not that offence is committed in

consequence of the abetment, shall be punished

with imprisonment of either description for a term

which may extend to three years, or with fine, or

with both."

Therefore, the legislative intent is manifest that

abettors of all the different offences under Section

13(1)(e) of the P.C. Act should also be dealt with along

with the public servant in the same trial held by the

Special Judge.

Shri K.K. Venugopal endeavoured to establish that the

offence under Section 13(1)(e) of the P.C. Act is to be

understood as an offshoot of the different facets of

misconduct of a public servant enumerated in clauses (a) to

(d) of the sub-section which a public servant might commit.

According to him, unless the ill-gotten wealth has a nexus

with the sources contemplated in the preceding clauses the

public servant cannot be held guilty under clause (e) of

Section 13(1). Learned senior counsel elaborated his

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contention like this: If a public servant is able to

account for the excess wealth by showing some clear sources,

though not legally permissible, but not falling under any of

the preceding clauses of the sub-section, he would be

discharging the burden cast on him. He cited an example

like this:

If the public servant satisfies the court that the

excess wealth possessed by him is attributable to the dowry

amount which he received from the father-in-law of his son,

the public servant is not liable to be convicted under the

aforesaid clause.

The above contention perhaps could have been advanced

before the enactment of the P.C. Act 1988 because Section

5(1)(e) of the old P.C. Act did not contain an

"Explanation" as Section 13(1)(e) now contains. As per the

Explanation the "known sources of income" of the public

servant, for the purpose of satisfying the court, should be

"any lawful source". Besides being the lawful source the

Explanation further enjoins that receipt of such income

should have been intimated by the public servant in

accordance with the provisions of any law applicable to such

public servant at the relevant time. So a public servant

cannot now escape from the tentacles of Section 13(1)(e) of

the P.C. Act by showing other legally forbidden sources,

albeit such sources are outside the purview of clauses (a)

to (d) of the sub-section.

There is no force in the contention that the offences

under Section 13(1)(e) cannot be abetted by another person.

"Abetment" is defined in Section 107 of the Penal Code as

under:

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"107. Abetment of a thing.- A person abets the

doing of a thing, who-

First.- Instigates any person to do that thing;

or

Secondly,- Engages with one or more other person

or persons in any conspiracy for the doing of that

thing, if an act or illegal omission takes place

in pursuance of that conspiracy, and in order to

the doing of that thing; or

Thirdly.- Intentionally aids, by any act or

illegal omission, the doing of that thing."

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For the "First" clause (i.e. instigation) the following

Explanation is added to the section:

"Explanation 1.- A person who, by willful

misrepresentation, or by willful concealment of a

material fact which he is bound to disclose,

voluntarily causes or procures, or attempts to

cause or procure, a thing to be done, is said to

instigate the doing of that thing."

For the "Thirdly" clause ( i.e. intentionally aids) the

following Explanation is added:

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"Explanation 2.- Whoever, either prior to or at

the time of the commission of an act, does

anything in order to facilitate the commission of

that act, and thereby facilitates the commission

thereof, is said to aid the doing of that act."

Shri Shanti Bhushan cited certain illustrations which,

according to us, would amplify the cases of abetments

fitting with each of the three clauses in Section 107 of the

Penal Code vis-a-vis Section 13(1)(e) of the P.C. Act.

The first illustration cited is this:

If A, a close relative of the public servant tells

him of how other public servants have become more

wealthy by receiving bribes and A persuades the

public servant to do the same in order to become

rich and the public servant acts accordingly. If

it is a proved position there cannot be any doubt

that A has abetted the offence by instigation.

Next illustration is this:

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Four persons including the public servant decide

to raise a bulk amount through bribery and the

remaining persons prompt the public servant to

keep such money in their names. If this is a

proved position then all the said persons are

guilty of abetment through conspiracy. The last

illustration is this:

If a public servant tells A, a close friend of

him, that he has acquired considerable wealth

through bribery but he cannot keep them as he has

no known source of income to account, he requests

A to keep the said wealth in A's name, and A

obliges the public servant in doing so. If it is

a proved position A is guilty of abetment falling

under the "Thirdly" clause of Section 107 of the

Penal Code.

Such illustrations are apt examples of how the offence

under Section 13(1)(e) of the P.C. Act can be abetted by

non-public servants. The only mode of prosecuting such

offender is through the trial envisaged in the P.C. Act.

For the aforesaid reasons we are unable to appreciate

the contentions of the appellants that they are not liable

to be proceeded against under the P.C. Act. Accordingly we

dismiss these appeals.